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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

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Ohio Legal Ethics Narrative



3.6:100 Comparative Analysis of Ohio Rule

3.6:101 Model Rule Comparison

Ohio Rule 3.6 is substantively identical to the Model Rule, except that in division (b) the language "of this rule and if permitted by Rule 1.6" has been added after "division (a)" in the first line.

3.6:102 Ohio Code Comparison

The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 3.6: DR 7-107.

3.6:200 Improper Extrajudicial Statements

  • Primary Ohio References: Ohio Rule 3.6(a)
  • Background References: ABA Model Rule 3.6(a)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 7.115-7.119, 7.122
  • Commentary: ABA/BNA § 61:1001; ALI-LGL § 109; Wolfram § 12.2

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 7.115-7.119, 7.122 (1996).

Trial publicity in general: The public has a legitimate interest in and a right to know about the workings of our legal system, both in general and in the context of particular cases. Ohio Rule 3.6 cmt. [1]; see Gentile v. State Bar, 501 U.S. 1030 (1991). The public dissemination of information about ongoing investigations and proceedings furthers that interest. Lawyers involved in a particular case are uniquely qualified to provide valuable insights about such matters. Id. Further, even though they are officers of the court, lawyers retain a First Amendment right to speak on these issues, the extent of which may vary depending on the underlying social and political implications of the speech in question. Toledo Bar Ass'n Op. 85-3 (5-7-85). Cf. Gentile v. State Bar, 501 U.S. 1030 (1991) (while the social and political nature of the speech involved was mentioned in the opinion, it is unclear whether it was treated as a factor).

On the other hand, excessive publicity may undermine both the rights of the parties to have their case decided before an impartial tribunal and the integrity of the legal system itself. Comments from lawyers actually participating in a case under discussion can be expected to be treated as particularly significant by the public and, therefore, are more likely to have a detrimental impact. Gentile v. State Bar, 501 U.S. 1030 (1991). Through media comments, the lawyer might be able to place before the public evidence and arguments that would not be admissible at trial. Such conduct may taint the outcome of the trial itself. Id. Even if it does not affect the outcome of the trial, it may substantially restrict the ultimate jury pool of those who remain unaffected by the public dissemination of information. Id.

Ohio Rule 3.6 seeks to accommodate these competing concerns, while staying within constitutional limits. The distinction that the Rule draws between prohibited and permitted speech turns on the source of the communication, the context in which the communication occurs, and the likely impact of the communication. Even if a communication would violate the Rule based on the application of these criteria, it still is permissible if the subject matter of the communication falls within the Rule's safe-harbor provision (Ohio Rule 3.6(b)) or if the communication is necessary to rebut negative publicity generated by others. Ohio Rule 3.6(c).

Source of the communication: The restrictions on trial publicity in Ohio Rule 3.6 apply only to lawyers who have participated or are participating in the investigation or litigation of a matter, Rule 3.6(a), and to those associated with them. Rule 3.6(d) (division (a) restrictions apply to any "lawyer associated in a firm or governmental agency with a lawyer subject to division (a)"). Lawyers who are unaffiliated with a case remain free to comment upon it. This provides the public access to expert commentary on pending litigation, while protecting the parties and the system from the harms likely to arise from improper public comments from lawyers actually participating in the proceeding itself or their surrogates. See Rule 3.5 cmt. [3]; see also ABA, Annotated Model Rules of Professional Conduct 355 (6th ed. 2007) (commentary).

Context in which the communication occurs: Ohio Rule 3.6(a) is concerned only with "extrajudicial statement[s] that the lawyer knows or reasonably should know will be disseminated by means of public communication" and will have a substantial likelihood of materially prejudicing an "adjudicative proceeding." The three contextual limitations set forth in the Rule carefully limit its reach.

First, the Rule speaks only to "extrajudicial" statements. Comments made in the official course of a proceeding are not covered. This is not to suggest that lawyer speech is immune from regulation if it occurs as a formal part of the litigation process, but only that such conduct is outside the scope of Ohio Rule 3.6. A court may exercise its contempt powers to control improper speech in the courtroom; parties may move to strike scandalous matter from civil pleadings; and improper speech may violate other Rules. (In this connection, it should be remembered that as a matter of defamation law, lawyers have an absolute privilege to publish matter in judicial proceedings, even if the publication is made with malice, so long as it bears some reasonable relation to the proceeding. "Judicial proceeding" is read expansively. See discussion at section 1.1:510.)

Second, the statements must be made in a situation in which the lawyer knows or reasonably should know that they will be publicly disseminated. Ohio Rule 3.6(a). Thus, communications about a case, reasonably thought by the lawyer to be private communications, remain unaffected by the Rule, even if they ultimately do become public, since the lawyer would not reasonably expect their public dissemination. However, if a lawyer makes improper comments in a context in which public dissemination is likely, the lawyer has committed a disciplinary offense, even if the statements are not in fact disseminated. See 2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 32.5, illus. 32-1 (3d ed. 2001). Further, the intent of the lawyer when making the statement is irrelevant. Even if the lawyer does not intend the comments to be publicly disseminated, if she reasonably should have known they likely would be, this aspect of the Rule is satisfied.

Third, the prohibition in Ohio Rule 3.6 is limited to comments that might have a material prejudicial impact in "an adjudicative proceeding." See generally Toledo Bar Ass'n v. Batt, 78 Ohio St.3d 189, 677 N.E.2d 349 (1997) (applying former OH DR 7-107 to conduct engaged in during an Ohio Hazardous Waste Facility Board hearing). Comments directed toward a matter pending in legislative hearings or nonadjudicatory administrative proceedings are not covered by the Rule.

Substantial likelihood of material prejudice: Ohio Rule 3.6 applies only to an extrajudicial statement that "the lawyer knows or reasonably should know . . . will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter." Ohio Rule 3.6(a). This standard incorporates a knowledge requirement, a predictive element, and a severity-of-harm concern.

First, with respect to the knowledge requirement, statements that have an unexpectedly severe impact on a proceeding are not improper. Only where the lawyer knew or reasonably should have known about a statement's likely impact is the Rule implicated.

Second, the Rule is concerned only with statements that have "a substantial likelihood" of having an improper impact. Thus, the disclosure of financial and time records relating to criminal and habeas proceedings that have been completed are not covered by the Rule. See, under the former OHCPR, State ex rel. Beacon Journal Publ'g Co. v. Bodiker, 134 Ohio App.3d 415, 731 N.E.2d 245 (Franklin 1999) (no substantial liklihood of materially prejudicing a judicial proceeding: "Relators do not articulate, nor do we discern, how the release of the requested information at this time, after all judicial proceedings involving [the defendant] have been concluded, will prejudice . . . the adjudicative proceedings in this case. Accordingly DR . . . 7-107(A) do[es] not pertain to this proceeding."  Id. at 426, 731 N.E.2d at 253.). Similarly, in Bd. of Comm'rs on Grievances & Discipline Op. 88-25, 1988 Ohio Griev. Discip. LEXIS 8 (Dec. 16, 1988), the Board opined that while a prosecutor was subject to former OH DR 7-107(A) (now Rule 3.6(a)) with respect to pending matters, the rule did not apply to completed criminal investigations. Thus, on completion of the investigation, a prosecutor was permitted to explain why criminal charges had not been authorized. If a comment meets the substantial-likelihood standard, however, the Rule is violated even if the comment ultimately does not adversely affect the proceeding. See ABA, Annotated Model Rules of Professional Conduct 357-58 (4th ed. 1999) (commentary) (so stating with respect to the identical language in MR 3.6(a) and noting that the Nevada Supreme Court "explicitly found that there was no actual prejudice" in Gentile. See 501 U.S. at 1065).

Finally, the Rule's prohibition is limited to comments of some magnitude. Only those that have a likelihood of "materially prejudicing" an adjudicative proceeding are banned.

Ambiguity exists as to the intended scope of the substantial-liklihood-of-material-prejudice standard in Ohio Rule 3.6(a). While the identical language in MR 3.6(a) was intended to be analogous to the "clear-and-present-danger" test that must be met in certain contexts before speech can be suppressed by a state consistent with the First Amendment, see ABA, Annotated Model Rules of Professional Conduct 243 (1984), the U.S. Supreme Court in Gentile v. State Bar, 501 U.S. 103 (1991), held that government has greater constitutional leeway in regulating lawyer speech in the ethics context than a "clear-and-present-danger-of-prejudice" standard would allow and that the language of the Rule can permissibly be construed to permit a lesser threshold for regulation. See ABA, Annotated Model Rules of Professional Conduct 352 (6th ed. 2007) (commentary). The Ohio Supreme Court did not speak to this issue under the identical language of former OH DR 7-107(A), so it remains to be seen how this language will be interpreted under the new Rules.

Context plays an important role in determining whether a statement presents a "substantial likelihood of material[] prejudic[e]." While there are no absolutes in this area, several factors can influence the determination.

One is whether the proceeding is criminal or civil in nature. While public communications can undercut the integrity of any proceeding, concerns are greatest in criminal cases, both because such cases are most likely to capture the public attention and therefore be influenced by public comment, and because the underlying need for fairness is greatest where individual life and liberty interests are involved. See generally Ohio Rule 3.6 cmt. [6].

A second factor is whether the action will be tried to a judge or a jury. As was recognized in Gentile, a judge is much less likely to be swayed by extrajudicial comments than are jurors. Gentile v. State Bar, 501 U.S. 1030, 1077 (1991) (Rehnquist, C.J., dissenting in part). See Ohio Rule 3.6 cmt. [6] (finding likelihood of prejudice to be less in nonjury hearings or arbitration proceedings than in jury trials).

A third factor is the time in the proceeding at which the comment is made. For example, comments made early on in the investigation of a matter typically are less likely to cause material prejudice than those made close to the time of voir dire or while the trial is ongoing, if the jury is likely to become aware of them. See ABA, Annotated Model Rules of Professional Conduct 353 (6th ed. 2007) (commentary) ("timing [of statement] has proved to be the most important criterion in assessing its potential for prejudice"). See also Laws. Man. on Prof. Conduct (ABA/BNA) § 61:1013 (2007).

A fourth factor is whether the information has been disseminated previously or will be disseminated in the proceeding itself. Reiteration of previously released information often is less likely, in and of itself, to materially prejudice the proceeding; the damage already has been done. (This will not always be the case, however, for the timing of the release, its cumulative effect, and the tenor and degree of its public dissemination may render it substantially likely to have a material effect on the proceeding.) Similarly, release of information that will subsequently be put to the proof at trial may not have a substantial likelihood of materially prejudicing the proceeding where the proof at trial is likely to be the decision-maker's focus, rather than the extrajudicial comments themselves. 2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 32.6 (3d ed. 2001).

Statements often carrying a substantial likelihood of material prejudice: Comment [5] provides a list of particular statements that are likely to violate the substantial-likelihood-of-material prejudice standard. Ohio Rule 3.6 cmt. [5]. As pointed out by the ABA with respect to the identical MR 3.6 cmt. [5], the list was included "to give fair notice of the kinds of statements that are generally thought to be more likely than other kinds of statements to pose unacceptable dangers to the fair administration of justice." ABA, Annotated Model Rules of Professional Conduct 355 (4th ed. 1999) (Model Code Comparison). The Comparison goes on to caution that whether or not making a listed statement will in fact violate the Rule depends on the particular facts of the case in which the statement is made. Id. Comment [5] of the Ohio Rule states as follows:

There are . . . certain subjects that are more likely than not to have a material prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration. These subjects relate to:

(1) the character, credibility, reputation, or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness;

(2) in a criminal case or proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement;

(3) the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;

(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration;

(5) information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create a substantial risk of prejudicing an impartial trial;

(6) the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.

Ohio Rule 3.6 cmt. [5].

Disclosure of the probable result of a court decision: Ohio Rule 3.6 does not carry forward the strange (and perhaps unique) prohibition contained in former OH DR 7-111, relating to premature disclosure of the result of a pending court decision deemed confidential. According to the Task Force, it "believes the subject-matter of that rule is addressed in Rules 8.4(b) and (d) as well as R.C. 102.03(B)." Task Force Report 27. (One wonders how such conduct, without more, could be considered "illegal" as required by Rule 8.4(b), unless the lawyer is a present or former public official subject to the nondisclosure strictures of ORC 102.3(B).)

Other controls on lawyer trial speech: Improper or discourteous comments directed toward the trial judge or others involved in the proceeding may be subject to discipline under Ohio Rule 3.5(a)(5) and/or (6) (conduct intended to disrupt, or that is degrading to, a tribunal). See section 3.5:400. In individual cases, a court in appropriate circumstances may impose protective orders limiting lawyer speech. OH Civ R 26(C). See generally 1 Howard P. Fink, Arthur F. Greenbaum & Charles E. Wilson, Guide to The Ohio Rules of Civil Procedure § 26-8 (2006 ed.). Gag orders also may be issued but are often constitutionally suspect. See ABA, Annotated Model Rules of Professional Conduct 354-55 (6th ed. 2007) (commentary). See generally Elizabeth L. Hendershot, Note, Constitutional Gag Orders Restricting Trial Participant's Speech: A Guide for Ohio Trial Judges, 56 Ohio St. L.J. 1537 (1995). Failure to follow these limitations can lead to sanction directly by the court, as well as possible disciplinary violations. See Ohio Rule 3.4(c). See generally section 3.4:400.

3.6:300 Permissible Statements

  • Primary Ohio References: Ohio Rule 3.6(b)
  • Background References: ABA Model Rule 3.6(b)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.120
  • Commentary: ABA/BNA § 69:1001; ALI-LGL § 109; Wolfram § 12.2

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.120 (1996).

Trial publicity - Permissible comments: In order to give lawyers some sense of security with respect to their extrajudicial publicly disseminated comments, Ohio Rule 3.6(b) provides a safe-harbor provision listing comments that a lawyer can make without fear of sanction. These are, "[n]otwithstanding division (a) of this rule and if permitted by Rule 1.6":

(1) the claim, offense, or defense involved and, except when prohibited by law, the identity of the persons involved;

(2) information contained in a public record;

(3) that an investigation of a matter is in progress;

(4) the scheduling or result of any step in litigation;

(5) a request for assistance in obtaining evidence and information necessary thereto;

(6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest;

(7) in a criminal case, in addition to divisions (b)(1) to (6) of this rule, any of the following:

(i) the identity, residence, occupation, and family status of the accused;

(ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person;

(iii) the fact, time and place of arrest;

(iv) the identity of investigating and arresting officers or agencies and the length of the investigation.

As stated in Comment [4], division (b) "is not intended to be an exhaustive listing of the subjects on which a lawyer may make a statement, but statements on other matters may be subject to division (a)." Rule 3.6 cmt. [4].

Two principal factors are at work in the decision to allow comment on these matters without sanction. Disclosure is authorized where the act of disclosure is likely to be beneficial and the risk of harm from such disclosure is comparatively slight.

With respect to much of the information listed, disclosure may be beneficial. In this vein, disclosure is allowed for matters likely to be of public interest, which includes disclosure of core information about the case and the course of an investigation and subsequent proceedings, Ohio Rule 3.6(b)(1), (3)-(4), (7)(i) & (iii); and disclosure necessary to protect the public from harm, Rule 3.6(b)(6). Disclosure also is authorized where necessary to aid in the investigation of a matter, Rule 3.6(b)(3), (7)(ii) & (iv), or to secure evidence relevant to the proceeding. Rule 3.6(b)(5). Further, as a practical matter, disclosure of the listed information typically is unlikely to cause material prejudice in the proceeding either because the information itself is not sufficiently prejudicial in nature or because the information is part of the public record. See Ohio Rule 3.6(b)(2). See also In re Grand Jury Investigation, 23 Ohio App.3d 159, 492 N.E.2d 459 (Cuyahoga 1985), where the court held that reiteration by a prosecutor of remarks made in open court did not violate what was then OH DR 7-107(A)(1). The 7-107(A)(1) provision (permitting extrajudicial statements that did no more than state without elaboration information in public record), was analogous to what is now the exception contained in Rule 3.6(b)(2) (information contained in public record).

Note that, unlike MR 3.6(b), under Ohio Rule 3.6(b) the safe-harbor statements may be made only "if permitted by Rule 1.6." As restated in Comment [2], "[t]he provisions of this rule do not supersede the confidentiality provisions of Rule 1.6." Ohio Rule 3.6 cmt. [2]. The comment further notes that special confidentiality rules may apply in juvenile, domestic relations, disciplinary and mental disability proceedings, and perhaps others. If so, "Rule 3.4(c) requires compliance with such rules."

3.6:400 Responding to Adverse Publicity

  • Primary Ohio References: Ohio Rule 3.6(c)
  • Background References: ABA Model Rule 3.6(c)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.121
  • Commentary: ABA/BNA § 61:1001; ALI-LGL § 109; Wolfram § 12.2

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility § 7.121 (1996).

Ohio Rule 3.6(c) recognizes that, at times, a lawyer may need to make certain public statements regarding an investigation or litigation to protect a client from substantial prejudice arising from publicity generated by persons other than the lawyer or the lawyer's client. Comments made in such a defensive fashion are exempt from the general prohibitions of Ohio Rule 3.6, but they must be "limited to information necessary to mitigate the recent adverse publicity." Ohio Rule 3.6(c).

In assessing whether, given the facts of a particular case, defensive disclosure is permissible, the Rule applies an objective rather than a subjective standard; it permits disclosure otherwise improper under the Rule only when "a reasonable lawyer" would believe it is required. A subjective belief that disclosure is necessary is not enough.

Further, defensive disclosure is appropriate only when three conditions are met: First, the harm of the publicity to which the lawyer seeks to respond must be significant. Only if the effect can be characterized as "substantial," "undue," and "prejudicial" is defensive disclosure permitted. Second, the adverse publicity at issue must be "recent." The Rule allows a lawyer to respond quickly to sufficiently adverse publicity in order to neutralize the situation, but it does not allow the lawyer, later in a proceeding, to use stale adverse publicity as a pretext to avoid the basic limitations of Rule 3.6. Third, the Rule is limited to instances in which the adverse publicity comes from a source other than the lawyer or the lawyer's client. This limitation discourages manipulative behavior whereby a lawyer might attempt to create adverse publicity in order to trigger an opportunity to respond.